Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

(1) Although the State presented no evidence at the bring-back hearing establishing that the defendant received proper notice by certified mail of the hearing or that he received notice of the basis upon which the State believed him eligible for SBM, by failing to object to the trial court’s findings at the hearing, the defendant waived the right to challenge them on appeal. (2) The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction to conduct the hearing. The defendant argued that there was no competent evidence that he resided in the county where the hearing was held. G.S. 14-208.40B(b)’s requirement that an SBM hearing be brought in the county in which the offender resides addresses venue, not subject matter jurisdiction and therefore the defendant’s failure to object at the hearing waived this argument on appeal.

(1) The DOC gave sufficient notice of a SBM hearing when its letter informed the defendant of both the hearing date and applicable statutory category. (2) The court rejected the defendant’s argument that SBM infringed on his constitutional right to travel.

State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010)

G.S. 14-208.40B (procedure for determining SBM eligibility when eligibility was not determined when judgment was imposed) applies to SBM proceedings initiated after December 1, 2007, even if those proceedings involve offenders who had been sentenced or had committed the offenses that resulted in SBM eligibility before that date. The defendant received a probationary sentence for solicitation of indecent liberties on August 30, 2007 and thus was subject to SBM requirements, which apply to any offender sentenced to intermediate punishment on or after August 16, 2006. He challenged the trial court’s later order requiring him to enroll in SBM, arguing that G.S. 14-208.40B did not apply to offenses committed prior to December 1, 2007, the statute’s effective date.

Subjecting defendants to satellite-based monitoring (SBM) does not violate the constitutional prohibition against ex post facto laws. The defendants all pleaded guilty to multiple counts of taking indecent liberties with a child; all of the offenses occurred before the SBM statutes took effect. The defendants challenged their eligibility for SBM, arguing that their participation would violate prohibitions against ex post facto laws. The court rejected this argument, concluding that the SBM program was not intended to be criminal punishment and is not punitive in purpose or effect. The court first determined that in enacting the SBM program, the General Assembly’s intention was to enact a civil, regulatory scheme, not to impose criminal punishment. It further concluded that, applying the Mendoza-Martinez factors, the SMB program is not so punitive either in purpose or effect as to negate the General Assembly’s civil intent. For related cases, see State v. Wagoner, 364 N.C. 422 (Oct. 8, 2010) (for the reasons stated in Bowditch, the court affirmed State v. Wagoner, 199 N.C. App. 321 (Sept. 1, 2009) (holding, over a dissent, that requiring the defendant to enroll in SBM does not violate the constitutional prohibition against ex post facto law or double jeopardy));  State v. Morrow, 364 N.C. 424 (Oct. 8, 2010).  For the reasons stated in Bowditch, the court affirmed State v. Morrow, 200 N.C. App. 123 (Oct. 6, 2009) (concluding, over a dissent, that the SBM statute does not violate the ex post facto clause)); State v. Vogt, 364 N.C. 425 (Oct. 8, 2010) (for the reasons stated in Bowditch, the court affirmed State v. Vogt, 200 N.C. App. 664 (Nov. 3, 2009) (concluding, over a dissent, that the SBM statute does not violate the ex post facto clause)); State v. Hagerman, 364 N.C. 423 (Oct. 8, 2010) (for the reasons stated in Bowditch, the court affirmed State v. Hagerman, 200 N.C. App. 614 (Nov. 3, 2009) (rejecting the defendant’s Apprendi challenge to SBM; reasoning that because SBM is a civil remedy, it did not increase the maximum penalty for the crime)). For post-Bowditch Court of Appeals cases reaching the same conclusion, see State v. Williams, 207 N.C. App. 499 (Oct. 19, 2010) (court rejected the defendant’s arguments that SBM violates prohibitions against ex post facto and double jeopardy). For pre-Bowditch Court of Appeals cases holding that SBM does not violate the ex post facto clause, see State v. Bare, 197 N.C. App. 461 (June 16, 2009); State v. Bowlin, 204 N.C. App. 206 (May 18, 2010); State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010).

Relying on prior binding opinions, the court rejected the defendant’s argument that the trial court’s order directing the defendant to enroll in lifetime SBM violated ex post facto and double jeopardy. The court noted that prior opinions have held that the SBM program is a civil regulatory scheme which does not implicate either ex post facto or double jeopardy.

Relying on prior binding opinions, the court rejected the defendant’s argument that the trial court’s order directing the defendant to enroll in lifetime SBM violated ex post facto and double jeopardy. The court noted that prior opinions have held that the SBM program is a civil regulatory scheme which does not implicate either ex post facto or double jeopardy.

Following prior case law, the court rejected the defendant’s arguments that SBM violates prohibitions against ex post facto and double jeopardy.

Because SBM is civil in nature, its imposition does not violate a defendant’s right to be free from double jeopardy.

(per curiam). Reversing the North Carolina courts, the Court held that under Jones and Jardines, satellite based monitoring for sex offenders constitutes a search under the Fourth Amendment. The Court stated: “a State … conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The Court rejected the reasoning of the state court below, which had relied on the fact that the monitoring program was “civil in nature” to conclude that no search occurred, explaining: “A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.” The Court did not decide the “ultimate question of the program’s constitutionality” because the state courts had not assessed whether the search was reasonable. The Court remanded for further proceedings.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 18 (2018), the Supreme Court affirmed the Court of Appeals’ decision finding satellite-based monitoring (SBM) to be an unreasonable and therefore unconstitutional search in the defendant’s case. The court modified the lower court decision to apply it not just to the defendant, but also to all sex offenders subject to mandatory lifetime SBM based solely on their status as recidivists who are no longer on probation, parole, or post-release supervision. In this case, the trial judge conducting the defendant’s SBM determination hearing (on remand from the Supreme Court of the United States, Grady v. North Carolina, 135 S. Ct. 1368 (2015)), considered the State’s evidence of the defendant’s prior sex crimes, the defendant’s full criminal record, copies of G.S. 14-208.5 and -208.43, photographs of the equipment the State uses to administer the SBM program, and testimony from a probation supervisor on the operation of the SBM equipment and the nature of the program. The defendant presented statistical reports, Community Corrections policy governing SBM, and an excerpt of SBM training materials for probation staff. Based on the totality of the circumstances, the trial judge entered an order concluding that SBM was a reasonable search as applied to the defendant and that the statute is facially constitutional, and ordered the defendant to enroll in SBM for life.

On appeal, the Court of Appeals concluded that although the defendant’s expectation of privacy was appreciably diminished as a sex offender, the State failed to prove that SBM was a reasonable search as applied to him under the Fourth Amendment. The State appealed as of right.

The Supreme Court declined to address the facial constitutionality of North Carolina’s SBM program in its entirety, instead addressing the program as applied to the narrower category of recidivists to which the defendant belongs. The court rejected the State’s argument that SBM was valid as a special needs search, because the State never identified any special need beyond the normal need for law enforcement, and because the defendant was no longer on probation or parole.

The court also found SBM unconstitutional under a reasonableness analysis, concluding that, given the totality of the circumstances, SBM’s intrusion into the defendant’s Fourth Amendment interests outweighed its promotion of legitimate governmental interests. As to the nature of the privacy interest, the court deemed SBM to be uniquely intrusive—presenting even greater privacy concerns than the cell-site location information at issue in Carpenter v. United States, 138 S. Ct. 2206 (2018). The court rejected the State’s arguments that felons generally and sex offenders in particular who have fully served their sentences have a diminished expectation of privacy. Regarding the character of the complained of intrusion, the court noted the absence of front-end discretion on the part of the judge who imposes SBM and the limited relief available on the back end through the Post-Release Supervision and Parole Commission, which has thus far declined all sixteen requests to terminate SBM filed under G.S. 14-208.43. Finally, as to the nature and purpose of the search, the court noted the State’s failure to provide evidence about how successfully the SBM program advances its stated purpose of protecting the public or any evidence regarding the recidivism rates of sex offenders. The court contrasted that lack of evidence with the copious evidence of student drug use the Supreme Court of the United States found critical in upholding random drug screening in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). Balancing those factors, the court determined that the State did not meet its burden of establishing the reasonableness of SBM for recidivists who have completed their sentence. The court concluded by emphasizing the limited scope of its holding, reiterating that it does not apply to SBM enrollees in other categories (for example, those enrolled based on an aggravated offense), regardless of whether they also happen to be a recidivist, or to enrollees still on parole, post-release supervision, or probation.

Justice Newby dissented, joined by Justice Morgan, arguing that the State’s paramount interest in protecting children outweighed the intrusion into the defendant’s diminished Fourth Amendment privacy interests, and that the SBM program is thus constitutional, both facially and as applied to the defendant.

The defendant appealed from judgments entered upon his guilty pleas to second-degree rape and forcible sex offenses, second-degree kidnapping, assault on female, assault by strangulation, obstruction of justice, and intimidating a witness. The defendant appealed by writ of certiorari both the trial court’s imposition of lifetime SBM and the trial court’s imposition of duplicative court costs.

First, the Court of Appeals had to decide whether the defendant’s writs of certiorari properly conferred jurisdiction to the court. The defendant gave oral notice of appeal at his sex offender registration hearing, however he did not specifically raise the issue of court costs or later file a written notice of appeal. The court exercised its discretion to allow the defendant’s petition for writ of certiorari to review the lifetime SBM order because they are “authorized to issue a writ of certiorari ‘to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]’ N.C. R. App. P. 21(a)(1).” Slip op. at 8. Next, the court dismissed the defendant’s oral notice of appeal and instead used its discretion under Rule 21(a)(1) to grant the defendant’s writ of certiorari because it was not the defendant’s fault because it was defendant’s trial counsel who failed to give proper notice of appeal.

(1) The defendant’s first argument on appeal was that the trial court erred in ordering the defendant to enroll in lifetime satellite-based monitoring (SBM) upon his release from prison and contends the state did not meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. Slip op. at 7.

The Court of Appeals used Gordon and Griffin II as instructive in addressing Grady III’s application to defendants convicted of an aggravated offense and outside the recidivist context. The court stated that “as this Court did in Griffin II, we employ Grady III as a roadmap, ‘reviewing [d]efendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring [d]efendant and the effectiveness of SBM in addressing those concerns.’ Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 273.” Slip op. at 10-11.

In evaluating the defendant’s privacy interests, the court determined the defendant has a diminished expectation of privacy in some respects, such as the privacy of his address or matters material to his voluntary participation in certain activities, because the defendant must submit to lifetime sex offender registration and post-release supervision upon release from prison. However, the court found that the defendant’s expectation of privacy would not always be so severely diminished and following the termination of post-release supervision, the defendant’s constitutional privacy rights will be restored and that will occur at some point before the end of the lifetime SBM order. Therefore, the court found that the “[d]efendant will enjoy ‘appreciable, recognizable privacy interests that weigh against the imposition of SBM for the remainder of’ [d]efendant’s lifetime. Griffin II, ___ N.C. App. at ___, 840 S.E.2d at 274.”

The court next evaluated the intrusive nature of SBM and found that “SBM’s ability to track Defendant’s location is ‘uniquely intrusive’, and thus weighs against the imposition of SBM.” Slip op. at 12 (citation omitted).

In considering the state’s interest, the court determined that the state failed to produce evidence that the lifetime SBM, in this case, effectively served legitimate interests such as preventing recidivism. The court explained that the state did not put forth any evidence showing that SBM served those interests and only provided legal conclusions. Therefore, the court determined “the state’s interest in monitoring [d]efendant by SBM during post-release supervision is already accomplished by a mandatory condition of post-release supervision imposing that very thing.” Slip op. 14.

Finally, the court considered the reasonableness of SBM under the totality of the circumstances and balancing the previously mentioned factors. The court decided that in this case, a lifetime SBM order is an unreasonable warrantless search in violation of the Fourth Amendment and therefore unconstitutional. The court determined that the defendant’s privacy rights, although diminished during post-release supervision, were substantially infringed upon by the lifetime SBM order and the defendant’s interests were not outweighed by a legitimate state interest because the state failed to provide evidence that a legitimate interest would be served by requiring the defendant be subject to lifetime SBM. 

(2) The defendant next argued that the trial court erred by entering duplicative court costs. The court determined the duplicative costs were error because, following Rieger, “when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single ‘criminal case’ for the purposes of N.C. Gen. Stat. § 7A-304(a).” Slip op. at 15.

Judge Tyson dissented because he did not think the defendant’s petition for writ of certiorari concerning the lifetime SBM order should have been granted because it was meritless. Judge Tyson also dissented from the writ of certiorari concerning the imposition of duplicative court costs because the judgements were not part of a “single criminal case.”

In a prior opinion, the Court of Appeals held that the state failed to meet its burden of showing the reasonableness of ordering the defendant to enroll in lifetime satellite-based monitoring (SBM) following his conviction for rape. The matter was before the court again for reconsideration in light of State v. Grady, ___ N.C. ___, 831 S.E.2d 542(2019). The appellate court first reviewed Grady’s holding that SBM was unconstitutional, but noted that “the decision was specific to those defendants enrolled in SBM exclusively on the basis of having attained the status of a recidivist, and for no other reason.” In the present case, the defendant was placed on SBM for committing an aggravated offense, not for being a recidivist, and the appellate court’s earlier decision to reverse the trial court’s order was “premised upon the State’s failure to meet its evidentiary burden” of showing that the “defendant posed a threat of reoffending, such that SBM would be reasonable.” Concluding that Grady was therefore inapplicable to the defendant’s case, the appellate court affirmed its earlier ruling to reverse the trial court’s order for the same reasons stated in its earlier opinion.

Judge Stroud concurred in part and dissented in part, citing to State v. Hilton, ___ N.C. App. ___, 845 S.E.2d 81 (2020), and would have affirmed the portion of the trial court’s order that imposed SBM during the period of time when the defendant is on post-release supervision, while still reversing the imposition of SBM beyond that period.

The defendant appealed from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. The defendant also challenged a civil order requiring lifetime SBM. Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child that allegedly occurred in 2007 or 2008. The victim told no one about what had happened to her until June 2017, when she was asked if she had ever been raped during the intake process for juvenile justice. The defendant was found guilty of all charges and sentenced to 240-297 months. Following release, the defendant would be required to register as a sex offender for life and to enroll in SBM for life.

(1) The defendant first argued that the trial court committed plain error by allowing that state’s expert witness, who conducted a forensic interview of the victim, to describe the victim’s claim that she was raped as a “disclosure,” and if this vouching for truthfulness had not occurred, then the victim would have been a less credible witness. The court of appeals first noted that the defendant did not object to the use of the word “disclosure” at trial and therefore his argument is reviewed for plain error.

The court explained that North Carolina case law makes it clear that experts cannot vouch for a child sexual abuse victim’s credibility when there is no evidence of physical abuse. The defendant argued the dictionary definition of disclose is “to make known (as information previously kept secret).” Slip op. at 4. The court acknowledged that the word may have that connotation at times, but its use must be considered in the specific context of the evidence in this case. After examining the testimony of the expert, the court determined that the use of the word “disclose” during the testimony “simply does not have the connotation of exposing a previously hidden truth as argued by [d]efendant.” Slip op. at 5. The court came to this conclusion because in this context the “use of the word ‘disclosure’ was simply as part of the description of the interview method and was not “vouching” for the truth of what an alleged victim reveals. Slip op. at 7.

(2) The court of appeals next noted that the defendant had waived his right to argue constitutional issues on appeal because no objection on constitutional grounds was made by defendant’s trial counsel and no notice of appeal was given from the SBM order. However, the court of appeals determined that because a substantial right of the defendant was affected, it was appropriate for the court to invoke Rule 2 to prevent a manifest injustice and thus review the constitutionality of the SBM order. Id. at 15.

The defendant argued that the trial court erred in ordering lifetime SBM because the state presented no evidence that lifetime SBM was a reasonable Fourth Amendment search of the defendant. The court reviewed the issue de novo and under the Grady III framework. The framework involves “reviewing Defendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns.” Id. at 16. The court of appeals found that the state presented no evidence showing how the lifetime SBM would reduce recidivism and therefore, the state “failed to meet its burden of establishing that lifetime satellite-based monitoring following [d]efendant’s eventual release from prison is a reasonable search in [d]efendant’s case.” Slip op. at 19.

The defendant was convicted at trial of numerous sex offenses against minor children, including statutory sex offense, sexual activity by substitute parent, and sale of controlled substances to minors in Cleveland County. He was sentenced to a minimum of 600 months and ordered to enroll in satellite-based monitoring (“SBM”) for life upon release based on the convictions relating to one victim, with an additional 10 year term of SBM for the other victim. The defendant properly appealed his convictions but failed to give notice of appeal of the SBM orders. In its discretion, the Court of Appeals granted his petition for writ of certiorari to review that issue.

(1) A therapist for one of the minor victims testified as an expert in childhood and teen trauma for the State at trial. She testified that the child had post-traumatic stress disorder (“PTSD”) and major depression and relayed to the jury disclosures by the victim of instances of sexual abuse by the defendant. This testimony was offered for corroborative purposes. The defendant did not object, and no limiting instruction about the testimony was given to the jury. The court therefore reviewed for plain error only. The North Carolina Supreme Court has held that it is improper to admit evidence of a PTSD diagnosis for substantive purposes. See State v. Hall, 330 N.C. 808, 821 (1992). However, such testimony may be admitted to corroborate substantive evidence, to rebut defense evidence of consent, or to explain why disclosure of the crime was delayed. When such evidence is admitted, the trial court should provide a limiting instruction to the jury regarding the use of the testimony. Failure to give the limiting instruction is not error, however, if the defendant fails to request one. Here, the testimony was properly admitted for corroborative purposes. Further, “even if a limiting instruction were required in the absence of a specific request by defendant, defendant was not prejudiced by the omission such that it would amount to fundamental error.” Thompson Slip op. at 8. There was therefore no plain error in the admission of the therapist’s diagnosis of PTSD.

(2) The defendant failed to raise a Fourth Amendment objection during the SBM hearing. However, because the State raised the constitutional issue and it was considered by the trial court in its ruling, the issue was preserved for appellate review. (2a) Here, the defendant’s enrollment in SBM would not occur until at least the expiration of his minimum term of imprisonment, at least 50 years from the time of judgment. As in State v. Gordon, 840 S.E.2d 907 (2020), “it is therefore difficult to assess the reasonableness of subjecting him to SBM given the unknown future circumstances of the program.” Thompson Slip op. at 16. Finding that the State failed to meet its burden to show that the lifetime SBM search was reasonable under the Fourth Amendment, the trial court’s order of lifetime SBM was reversed.

(2b) The second SBM order requiring the defendant to enroll in SBM for a term of 10 years was proper. The evidence supported the finding that the offenses involved the sexual abuse of a minor child, and the trial court properly considered the relationship between the victim and defendant, the offenses, and the age of the victims. The defendant’s risk assessment indicated he was “low-risk,” but the trial judge was free to make its own determination of the defendant’s risk based on the totality of evidence, as it did here. Furthermore, “ten years is not ‘significantly burdensome and lengthy,’ especially given that the defendant will be subject to post-release supervision for half of that time period.” Id. at 20. The trial court committed a mere clerical error in failing to make a finding that the defendant required the highest possible level of supervision. This SBM order was therefore affirmed and remanded for correction of the clerical error.

Judge Berger concurred with the majority opinion as to the criminal judgment and concurred in result with the SBM portion of the opinion, joined by Judge Dietz. These judges would have found that the precedent by which the majority found the defendant’s Fourth Amendment challenge preserved (based on the State’s act of raising the constitutional issue) was inconsistent with the preservation requirements under the Rules of Appellate Procedure. However, given the uncertain and evolving nature of SBM case law in the State, as well as the fact that the SBM order here was issued before Gordon was decided, the concurring judges would have found that the defendant could not have preserved his constitutional arguments [and presumably would have found the issue preserved on that basis, rather than the precedent relied upon by the majority.]

In this Mecklenburg County case, the defendant pled guilty to various sex offenses and was ordered to enroll in satellite-based monitoring (“SBM”) for life, following a contested hearing on that issue. The defendant appealed and the Court of Appeals reversed the order in an unpublished opinion. The State sought review in the North Carolina Supreme Court. That court granted the state’s petition for discretionary review and remanded the matter back to the Court of Appeals in light of State v. Grady, 372 N.C. 509 (2019) (“Grady III”). On remand, the Court of Appeals reached the same conclusion and reversed the trial court’s SBM order.

The defendant was sentenced to at least 30 years in prison for his crimes in this case. While Grady III dealt with recidivists specifically (a category of potential SBM registrants not at issue in this case), the Court of Appeals nonetheless determined that the Grady III analysis was a guidepost. The facts of this case were parallel to those in State v. Gordon, 840 S.E.2d 907 (2020). There, the SBM enrollment and Fourth Amendment search would not take effect until the defendant was released from prison—at least 15 years later. Here, the SBM search would not begin for at least 30 years. As in Gordon, that the defendant will not enroll in SBM for a matter of decades reduced the ability of the State to demonstrate the search is reasonable. Citing Gordon, the court observed that the State “is hampered by a lack of knowledge concerning the unknown future circumstances relevant to that analysis.” Slip op. at 7 (citation omitted). A concurring judge in the original Court of Appeals opinion in Gordon noted that this created “an impossible burden” for the State to meet. The court noted that if the SBM statutes were amended to provide for SBM hearings at the time of a defendant’s release from prison, that burden would be alleviated. “But until we receive further guidance from the Supreme Court or new options for addressing the SBM procedure from the General Assembly, under existing law, we are required to reverse defendant’s SBM order.” Id. at 9.

Judge Tyson dissented. He would have found that Grady III did not require this result and that the majority improperly extended the reach of that case. He would have affirmed the trial court’s SBM order.

In this rape and sex offense case, the Court of Appeals reversed the trial court’s order imposing lifetime SBM.  First addressing its appellate jurisdiction, the court explained that it allowed the defendant’s petition for writ of certiorari in its discretion, notwithstanding procedural defects in his notice of appeal, because of the “meritorious nature” of the defendant’s argument regarding SBM and the current “tumultuous” state of the law.  Before turning to the merits of the SBM issue, the court also dismissed a portion of the defendant’s appeal having to do with attorney’s fees because an order for those fees had not been entered as a civil judgment. 

As the defendant was not a recidivist and, consequently, the order requiring lifetime SBM was not facially unconstitutional under State v. Grady, 259 N.C. App. 664 (2018) (“Grady III”), the court conducted a reasonableness analysis guided by the principles of Grady III, namely that it is the State’s burden to show that under the totality of the circumstances lifetime SBM is reasonable because its intrusion upon Fourth Amendment interests is balanced by its promotion of legitimate government interests.  As to the intrusion side of the analysis, the court likened this case to State v. Gordon, ___ N.C. App. ___, 840 S.E.2d 907 (2020) where it explained that the State’s ability to show the reasonableness of lifetime SBM is hampered in situations where it is imposed at sentencing but will not be implemented upon the defendant until he or she is released after a lengthy prison sentence.  The court also noted the deeply intrusive nature of the ET-1 monitoring device at issue and the fact that the defendant’s privacy interests will be less diminished following his completion of PRS.  As to the State’s interest in SBM and its efficacy, the court rejected the State’s argument that SBM would discourage recidivism, saying that the State had not presented evidence to support that assertion, either generally or with respect to the defendant specifically.  The court also rejected the State’s argument that lifetime SBM would serve the purpose of keeping the defendant out of “exclusion zones,” noting that his status as a registered sex offender already barred him from many such zones and that his offense involved an adult roommate.  For a lack of evidence, the court also rejected the argument that lifetime SBM would ensure that he abided by an order to have no contact with the victim.  Under the totality of the circumstances, the State did not show that lifetime SBM was a reasonable warrantless search in this case.

In 2007, the defendant pled guilty to statutory rape and statutory sexual offense and was sentenced to 144 to 182 months of imprisonment. With credit for presentence confinement, he was released in July 2017 subject to PRS, which included a condition that he not leave Catawba County without the consent of his probation officer. After his release, the defendant violated that condition by going to Caldwell County without the knowledge or approval of his probation officer. He was subsequently charged with taking indecent liberties with his fifteen-year-old niece and absconding to Caldwell County. During the pendency of his case in Caldwell County, the State initiated proceedings to enroll the defendant in SBM through a bring-back hearing pursuant to G.S. 14-208.40B. After a hearing, the trial judge ordered the defendant to enroll in SBM for life. The Court of Appeals ruled that the imposition of lifetime SBM on the defendant constituted an unreasonable search. A majority of the Court ruled further that the imposition of SBM during the defendant’s period of PRS was reasonable. The majority found that the defendant’s expectation of privacy is low during PRS. And, although the State failed to present evidence showing the efficacy of SBM in solving sex crimes, it presented evidence showing SBM’s efficacy in determining whether the defendant violated the condition of PRS that he remain in Catawba County. The majority held that the “for life” language in G.S. 14-208.40B is severable from the rest of the statute and affirmed the trial judge’s order to the extent it imposes SBM for the period of the defendant’s PRS. A dissenting judge concurred with the majority’s reversal of lifetime SBM but would have reversed the imposition of SBM for the period of PRS. He stated that the State did not show the efficacy of SBM during PRS and that statute on lifetime SBM could not be construed to authorize SBM for the period of PRS.

The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments. He also argued that the trial court erred in imposing lifetime SBM because the State failed to establish that SBM constitutes a reasonable search under the Fourth Amendment.

(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.

(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.

(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.

(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.

(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.

(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.

(2) Over a dissent, the Court of Appeals granted certiorari review of the trial court’s order imposing lifetime SBM and invoked Rule 2 of the Rules of Appellate Procedure to consider the defendant’s constitutional claim, which was not raised before the trial court.

The trial court determined at sentencing that the defendant was convicted of reportable convictions pursuant to G.S. 14-208.6(4) and that statutory rape of a child by an adult and statutory sex offense were sexually violent offenses and aggravated offenses involving the sexual abuse of a minor. Pursuant to these findings, the court ordered that the defendant enroll in lifetime SBM upon his release from imprisonment.

The trial court did not, however, conduct a hearing to determine the constitutionality of ordering the defendant to enroll in SBM, as required by State v. Grady, 259 N.C. App. 664 (2018), aff’d as modified, 372 N.C. 509 (2019), and the State did not present any evidence regarding the reasonableness of an SBM search, which would be carried out following the defendant’s release from prison in 25 to 35 years.

The Court of Appeals held that the trial court’s failure to hold a hearing to determine the reasonableness of lifetime SBM for the defendant rendered the SBM order unconstitutional. The court thus vacated the imposition of lifetime SMB without prejudice to the State’s ability to file a subsequent SBM application.

A dissenting judge would have dismissed the defendant’s petition for certiorari review of the SBM order based on his failure to raise the constitutional challenge before the trial court.

The defendant pleaded guilty in 2017 to multiple sexual offenses and was sentenced to 190-288 months. After determining that the convictions qualified as “aggravated offenses” under G.S. 14-208.6(1A), the court conducted a satellite-based monitoring (SBM) hearing. Evidence at the hearing showed that the defendant had a moderate to low Static-99 score (indicating a lower likelihood of re-offending) and only one prior offense, but based on the facts of the underlying case and testimony from the state’s witness that the device was a relatively minor intrusion, the trial court ordered that he be monitored for life upon his release. The defendant appealed the order, arguing the state had failed to show that imposing monitoring on him was reasonable under the Fourth Amendment.

Based on prior decisions that culminated in Grady v. North Carolina, 575 U.S. 306 (2015) (“Grady I”) and State v. Grady, 817 S.E.2d 18 (N.C. App. 2018) (“Grady II”), the appellate court vacated the monitoring order in this case in an earlier opinion (820 S.E.2d 329) filed on September 4, 2018, finding that the state had failed to meet its burden of showing that monitoring this defendant would be a reasonable search 15 or 20 years in the future. The state sought discretionary review of that decision at the North Carolina Supreme Court, but after issuing its opinion in State v. Grady, 372 N.C. 509 (2019) (“Grady III”), the state supreme court remanded this matter back to the appellate court for reconsideration in light of that decision. Grady III applied the earlier rulings finding that SBM is a “search” under the Fourth Amendment, and then used a totality of the circumstances test to decide if the search was reasonable, balancing the defendant’s privacy interest against the legitimate government interest in tracking the defendant. Grady III concluded that SBM was unconstitutional as applied to any unsupervised person ordered to enroll in monitoring solely on the basis of being a recidivist offender, but left open the possibility that defendants placed on SBM for other reasons (such as commission of an aggravated offense) might be permissible.

Reconsidering the instant case in light of Grady III, the appellate court conducted a totality of the circumstances analysis and weighed the defendant’s Fourth Amendment and privacy rights against the legitimate government interest in preventing sexual assaults, and once again held that the state had failed to meet its burden of showing that lifetime SBM was a reasonable search of this defendant. Compared to the high degree of intrusion into the defendant’s privacy, the state could not forecast either the need or scope of such monitoring 15 or 20 years in the future, whether the defendant would be supervised or unsupervised at that time, or even whether the same technology would still be in use, and the state failed to demonstrate that the monitoring would achieve its stated goal of preventing future sexual assaults. The trial court’s order imposing lifetime SBM on the defendant was therefore reversed.

In State v. Grady, 372 N.C. 509 (2019), the North Carolina Supreme Court held that lifetime satellite- based monitoring (SBM) is unconstitutional as applied to any person who is ordered to enroll in SBM because he or she is a recidivist. The Court held that SBM in those circumstances constitutes an unreasonable search in violation of the Fourth Amendment. [Note: For a further discussion of the Grady decision, see Jamie Markham, Satellite-Based Monitoring Is Unconstitutional for All Unsupervised Recidivists (Sept. 12, 2019).] The Court of Appeals in this case considered the constitutionality of a 30- year SBM order against a person who was not a recidivist and not automatically subject to SBM. The defendant was convicted of first-degree sex offense with a child and was sentenced to 144 to 182 months in prison. On his release from prison in 2015, he was placed on a five-year term of post-release supervision. The State sought SBM under G.S. 14-208.40(a)(2), which allows a judge to impose SBM for a term of years against a person who has committed an offense involving the physical, mental, or sexual abuse of a minor. Following a hearing, the trial judge ordered the defendant to submit to SBM for 30 years. The defendant did not contest the imposition of SBM for the five-year period of post-release supervision but argued that the imposition of SBM for an additional 25 years was unconstitutional. Applying the reasoning of Grady, the Court of Appeals agreed. It found first that the imposition of SBM for 25 years, although less than the lifelong term at issue in Grady, constituted a significantly lengthy and burdensome warrantless search. It found further that the State did not meet its burden of showing SBM’s efficacy in meeting its professed aims, having failed to offer any evidence that SBM is effective in apprehending sex offenders, preventing new sex offenses, or otherwise protecting the public. The Court also found that the trial judge’s findings in imposing SBM in this case—that the defendant had betrayed the minor victim’s trust, had not completed a sex offender treatment program (SOAR) in prison, and had a moderate-low risk of reoffending based on the Static-99—did not support imposition of SBM. One judge concurred in the result only.

This case was before the Court of Appeals for reconsideration in light of State v. Grady, ___ N.C. ___, 831 S.E.2d 542 (2019). The court’s prior opinion is State v. Dravis, ___ N.C. App. ___, 817 S.E.2d 796 (2018) (unpublished).

The Court of Appeals again concluded that the findings of the trial court were not sufficient to support a conclusion that lifetime satellite-based monitoring (SBM) was a reasonable warrantless search. The court explained that the State did not provide sufficient evidence to show how the efficacy of SBM helped solve sex offense crimes. Thus, it reversed the trial court’s order imposing lifetime SBM.

State v. Anthony, ___ N.C. App. ___, 831 S.E.2d 905 (Aug. 20, 2019) review granted, ___ N.C. ___, 835 S.E.2d 448 (Aug 30 2019)

The court reversed the trial court’s order requiring the defendant to submit to lifetime satellite-based monitoring (SBM) on the basis that it ordered an unreasonable search. Though the State mentioned statistics and studies related to the risk of recidivism posed by sex offenders in its argument, it did not present those studies to the trial court, and they were not subject to judicial notice under Rule 201. In addition, the State presented no evidence on the efficacy of SBM to reduce recidivism. 

Over a dissent in this SBM case, the court relied on State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 (2018) to vacate the trial court’s imposition of lifetime satellite-based monitoring of the defendant.  Under Griffin, “trial courts cannot impose satellite-based monitoring unless the State presents actual evidence—such as ‘empirical or statistical reports’—establishing that lifetime satellite-based monitoring prevents recidivism.”  Here, the State did not produce the sort of evidence required by Griffin.  The court noted that Griffin and several related cases were pending in the North Carolina Supreme Court.  A dissenting judge criticized Griffin and would have held that imposition of lifetime SBM in this case was reasonable under the circumstances and thus was reasonable under the Fourth Amendment.

In a case where the defendant was convicted of taking indecent liberties with a child, the court held that the State failed to meet its burden of showing the reasonableness of the SBM program as applied to the defendant by failing to produce evidence concerning the efficacy of the program. It thus reversed the trial court’s order requiring lifetime SBM.

In this second-degree rape case, the trial court erred by ordering lifetime SBM where the State did not meet its burden of proving that SBM was a reasonable Fourth Amendment search. The United States Supreme Court has held that SBM is a search. Therefore, before subjecting a defendant to SBM, the trial court must first examine whether the monitoring program is reasonable. Here, the State failed to carry its burden of proving the SBM was a reasonable Fourth Amendment search where it failed to put on any evidence regarding reasonableness. The State will have only one opportunity to prove that SBM is a reasonable search. Here, because it failed to do so, the court reversed the trial court’s SBM order.

Citing prior case law, the court held that because the trial court failed to conduct a hearing to determine whether it would be constitutional to subject the defendant to SBM upon his release from a prison sentence for rape, the trial court’s order enrolling the defendant in SMB for life must be vacated and the matter remanded for a hearing. The court rejected the defendant’s argument that the appropriate remedy was to reverse without remanding for a hearing, noting that in this case no hearing whatsoever had been held on the matter.

State v. Gordon, ___ N.C. App. ___, 820 S.E.2d 339 (Sept. 4, 2018) temp. stay granted, ___ N.C. ___, 818 S.E.2d 112 (Sep 21 2018)

The court vacated the trial court’s order requiring lifetime SBM, concluding that the State cannot establish, at this time, that the defendant’s submission to SBM will constitute a reasonable fourth amendment search when the defendant is eventually released from prison. After the defendant pleaded guilty to statutory rape and other charges, the trial court sentenced the defendant and ordered him to enroll in lifetime SBM upon his release from prison. At the SBM hearing, a probation and parole officer in the sex offender unit explained, among other things, how the SBM device currently in use operates. The defendant’s Static-99 score was moderate/low and the officer agreed that based on that score it was not likely that the defendant would commit another sex crime. On appeal the defendant argued that the trial court erred by ordering lifetime SBM because the State failed to meet its burden of proving that imposing SBM was reasonable under the fourth amendment. The court agreed. Because enrollment in the SBM program constitutes a fourth amendment search, the reasonableness of the search must be assessed to determine its constitutionality. The court viewed the SBM order as a general warrant. It explained:

The satellite-based monitoring program grants . . . expansive authority to State officials. State officials have the ability to access the details of a monitored defendant’s private life whenever they see fit. A defendant’s trip to a therapist, a church, or a family barbecue are revealed in the same manner as an unauthorized trip to an elementary school. At no point are officials required to proffer a suspicion or exigency upon which their searches are based or to submit to judicial oversight. Rather, the extent of the State’s ability to rummage through a defendant’s private life are left largely to the searching official’s discretion, constrained only by his or her will.

The court noted that it “will not exhibit a more generous faith in our government’s benign use of general warrants than did the Founders,” and concluded that “Given the unlimited and unfettered discretion afforded to State officials with the satellite-based monitoring system, the State’s burden of establishing that the use of satellite-based monitoring will comply with the Fourth Amendment’s demand that all searches be ‘reasonable’ is especially weighty.”

            Here, the State failed to meet its burden of showing that SBM of the defendant will be reasonable. Specifically, the State did not establish the circumstances necessary for the court to determine the reasonableness of a search 15 to 20 years before its execution. The general balancing approach ordinarily involves examination of the circumstances existing at the time of the search, including the nature of the privacy interest upon which the search intrudes; the character of the intrusion itself and the information it discloses; as well as the nature and immediacy of the government concerns at issue and the efficacy of the means for meeting it. In prior decisions the court was able to determine the reasonableness of SBM orders because the defendants had already become subject to the monitoring at the time of the court’s decisions. Thus, the court could examine the totality of the circumstances to determine the reasonableness of the search. Here, there is a lack of knowledge concerning the future circumstances relevant to the analysis. For example, the court explained, we do not yet know the extent of the invasion that the search will entail when the SBM eventually is implemented on the defendant. The State focuses on the limited impact of the monitoring device itself, but provides no indication that the monitoring device currently in use will be similar to that which may be used 15 to 20 years in the future. Additionally, the State has been unable to adequately establish the government’s need to conduct the search. Among other things, the State’s evidence “falls short of demonstrating what Defendant’s threat of recidivating will be after having been incarcerated for roughly [15] years.” The only individualized measure of the defendant’s risk of reoffending was the Static-99, which the State’s witness characterized as indicating that the defendant was not likely to recidivate. The court concluded:

Without reference to the relevant circumstances that must be considered, the State has not met its burden of establishing that it would otherwise be reasonable to grant authorities unlimited discretion in searching—or “obtaining”—Defendant’s location information upon his release from prison. Authorizing the State to conduct a search of this magnitude fifteen to twenty years in the future based solely upon scant references to present circumstances would defeat the Fourth Amendment’s requirement of circumstantial reasonableness altogether. (citation omitted).

         The court vacated the trial court’s order and remanded with instructions for the trial court to dismiss the State’s application for SBM monitoring without prejudice to the State’s ability to reapply.

State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336 (Aug. 7, 2018) temp. stay granted, ___ N.C. ___, 817 S.E.2d 210 (Aug 24 2018)

Following State v. Grady, __ N.C. App. __, __ S.E.2d __ (May 15, 2018), the court held, over a dissent, that absent any evidence that SBM is effective to protect the public from sex offenders, the trial court erred by imposing SBM for 30 years. The defendant proffered an Alford plea to first-degree sex offense with a child. The defendant was sentenced and released from prison. Eleven years later, he was subjected to a “bring-back” hearing to determine whether he would be required to participate in SBM. At that hearing, the trial court ordered the defendant to enroll in SBM for 30 years. The defendant appealed, arguing that the trial court violated his fourth amendment rights by ordering him to submit to SBM for 30 years. The court agreed. Grady held that absent evidence that SBM is effective in serving the State’s compelling interest in protecting the public from sex offenders, the State fails to meet its burden to prove that SBM is reasonable as required by the fourth amendment. Here, as in Grady, the State presented no evidence regarding the efficacy of the SBM program. Having found that the State failed to prove that SBM is a reasonable search compliant with the fourth amendment because it presented no evidence that the program is effective to serve the State’s interest in protecting the public against sex offenders, the court declined to reach the issue of whether the trial court’s order or the State’s evidence regarding the defendant’s individual threat of reoffending meets minimum constitutional standards.

State v. Bursell [Duplicated], ___ N.C. App. ___, 813 S.E.2d 463 (Mar. 20, 2018) aff’d in part, rev’d in part, ___ N.C. ___, ___ S.E.2d ___ (May 10 2019)

On an appeal from an order requiring the defendant to enroll in lifetime SBM, the court held--as conceded by the State--that the trial court erred by imposing lifetime SBM without conducting the required Grady hearing to determine whether monitoring would amount to a reasonable search under the Fourth Amendment. The court vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application.

The defendant failed to preserve the claim that the trial court erred by ordering him to enroll in SBM without conducting a Grady hearing to determine whether the monitoring was reasonable under the Fourth Amendment. After a jury convicted the defendant of taking indecent liberties with his daughter, the trial court ordered him to enroll in SBM for 30 years. The defendant did not challenge the trial court’s imposition of SBM on constitutional grounds at the hearing. Immediately after the sentence and SBM was imposed, the defendant entered a plea to two additional counts of indecent liberties with a child, evidence of which was uncovered during investigation with respect to his daughter. The trial court sentenced the defendant, found he qualified as recidivist, and ordered him to enroll in SBM for life. The defendant did not challenge this new SBM order on constitutional grounds. Nor did he timely appeal either of the SBM orders. He later filed a petition for writ of certiorari, asking the Court of Appeals to review the SBM orders. The court concluded that the defendant’s claim suffered from two separate preservation issues. First the defendant did not make the Grady constitutional argument before the trial court. Second, he did not timely appeal the SBM orders. The court went on to decline to consider the merits of his claim. 

(1) The trial court erred by ordering lifetime registration for the defendant. Although the defendant was convicted of reportable convictions and is therefore required to register as a sex offender, neither sexual offense with a child under G.S. 14-27.4A(a) nor sexual activity by a substitute parent under G.S. 14-27.7(a) constitute aggravated offenses requiring lifetime registration. (2) The trial court erred by ordering lifetime SBM without a determination that the program was a reasonable search as mandated under Grady v. North Carolina, __ U.S. __, 191 L. Ed. 2d 459 (2015). The parties agreed that no evidence was presented to demonstrate the reasonableness of lifetime SBM. The court thus reversed the SBM order and remanded for the reasonableness determination mandated by Grady.

In this appeal from the trial court’s order imposing SBM, the court rejected the defendant’s argument that the state’s SBM laws are facially unconstitutional but remanded for a determination of the reasonableness of the imposition of SBM. Before the trial court, the defendant argued that imposition of SBM violated his fourth amendment rights under Grady v. North Carolina, 135 S. Ct. 1368 (2015). The trial court accepted the State’s argument that there was no need to address reasonableness under the fourth amendment because SBM was required by the applicable statute. On appeal, the State conceded that the trial court erred by imposing SBM without first considering whether it was reasonable, once the defendant raised the fourth amendment issue. The court thus vacated the SBM order and remanded.

State v. Blue, 246 N.C. App. 259 (Mar. 15, 2016)

(1) The court rejected the defendant’s argument that because SBM is a civil, regulatory scheme, it is subject to the Rules of Civil Procedure and that the trial court erred by failing to exercise discretion under Rule 62(d) to stay the SBM hearing. The court concluded that because Rule 62 applies to a stay of execution, it could not be used to stay the SBM hearing. (2) With respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure, the trial court erred by failing to conduct the appropriate analysis. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable.

The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable.

The trial court did not err by ordering the defendant to enroll in lifetime SBM. The court rejected the defendant’s argument that the SBM statute violates substantive due process by impermissibly infringing upon his right to be free from government monitoring of his location. The court also rejected the defendant’s argument that as applied to him the statute violates substantive due process because it authorizes mandatory lifetime participation without consideration of his risk of reoffending.

The statutory definition of an aggravated offense in G.S. 14-208.6(1a) is not unconstitutionally vague for failure to define the term “use of force.”

(1) The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction to order SBM enrollment because the State failed to file a written pleading providing notice regarding the basis for SBM. (2) The court rejected the defendant’s argument that the trial court violated his due process rights by ordering him to enroll in SBM without providing any notice of the ground triggering SBM. Because the defendant was placed on probation and as a condition of his probation was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40A; neither the DOC nor the trial court was responsible for any type of notice regarding defendant’s eligibility.

State v. Self, 217 N.C. App. 638 (Dec. 20, 2011)

The court rejected the defendant’s argument that the trial court lacked jurisdiction to conduct an SBM determination hearing because the DOC did not file a complaint or issue a summons to the defendant as required by the Rules of Civil Procedure. The court concluded that G.S. 14-208.40B(b), “which governs the notification procedure for an offender when there was no previous SBM determination at sentencing, does not require NCDOC to either file a complaint or issue a summons in order to provide a defendant with adequate notice of an SBM determination hearing.” Moreover, it concluded, the defendant does not argue that the DOC’s letter failed to comply with the notification provisions of G.S. 14-208.40B(b). 

State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010)

The defendant did not receive adequate notice of the basis for the Department of Correction’s preliminary determination that he should be required to enroll in SBM under the version of G.S. 14-208.40B(b) applicable to the defendant’s case. Specifically the notice failed to specify the category set out in G.S. 14-208.40(a) into which the Department had determined that the defendant fell or to briefly state the factual basis for its conclusion.

Requiring enrollment in the SBM program deprives an offender of a significant liberty interest, triggering procedural due process protections. The State violated the defendant’s procedural due process rights by failing to give him sufficient notice in advance of the SBM hearing of the basis for the DOC’s preliminary determination that he met the criteria for enrollment in the SBM program. G.S. 14-208.40B requires the DOC to notify the offender, in advance of the SBM hearing, of the basis for its determination that the offender falls within one of the categories in G.S. 14-208.40(a), making the offender subject to enrollment in the SBM program.

Affirming the trial court’s order requiring the defendant to enroll in SBM for life as a recidivist based on convictions for indecent liberties with a minor in 1989 and 2006. The defendant’s bring-back hearing was held in January, 2008, days before his release from prison. The defendant argued that the court lacked jurisdiction to hold the bring-back hearing because he did not receive notice of the hearing in the manner set out in G.S. 14-208.40B(b), that is, by certified mail “sent to the address provided by the offender pursuant to G.S. 14-208.7 [the sex offender registration statute].” Notice in this manner would have been impossible, because the defendant had not been released from prison and had not established a registration address. The court held that the failure to follow the precise letter of the statute’s notice provisions was not a jurisdictional error.

State v. Barnett, 245 N.C. App. 101 (Jan. 19, 2016) rev’d in part on other grounds, 369 N.C. 298 (Dec 21 2016)

The trial court erroneously concluded that attempted second-degree rape is an aggravated offense for purposes of lifetime SBM and lifetime sex offender registration. Pursuant to the statute, an aggravated offense requires a sexual act involving an element of penetration. Here, the defendant was convicted of attempted rape, an offense that does not require penetration and thus does not fall within the statutory definition of an aggravated offense.

The State conceded and the court held that the trial court erred by requiring the defendant to submit to lifetime SBM. The trial court imposed SBM based on its determination that the defendant’s conviction for first-degree rape constituted an “aggravated offense” as defined by G.S. 14-208.6(1a). However, this statute became effective on 1 October 2001 and applies only to offenses committed on or after that date. Because the date of the offense in this case was 22 September 2001, the trial court erred by utilizing an inapplicable statutory provision in its determination.

The trial court did not err by requiring the defendant to enroll in lifetime SBM after finding at the bring-back hearing that he committed an aggravated offense, second-degree rape on a physically helpless victim (G.S. 14-27.3(a)(2)). The court followed State v. Oxendine, 206 N.C. App. 205 (2010), and held that second-degree rape was an aggravated offense.

Where the defendant was convicted of first-degree statutory rape the trial court did not err by ordering the defendant to enroll in lifetime SBM upon release from imprisonment. The offense of conviction involved vaginal penetration and force and thus was an aggravated offense.

The trial court erred by ordering lifetime sex offender registration and lifetime SBM because first-degree sexual offense is not an “aggravated offense” within the meaning of the sex offender statutes.

The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring based on its determination that second-degree sexual offense was an aggravating offense. Considering the elements of the offense, second-degree sexual offense is not an aggravated offense.

(1) Following prior case law, the court held that taking indecent liberties with a child is not an aggravated offense for purposes of lifetime SBM. (2) Relying on State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011) (first-degree statutory rape involving a victim under 13 is an aggravated offense for purposes of SBM), the court held that statutory rape of a victim who is 13, 14, or 15 is an aggravated offense for purposes of lifetime SBM. (3) Neither statutory sex offense under G.S. 14-27.7A(a) nor sexual activity by a substitute parent under G.S. 14-27.7(a) are aggravated offenses for purposes of SBM.

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

The trial court erroneously required the defendant to enroll in lifetime SBM on the basis that first-degree sexual offense was an aggravated offense. The court reiterated that first-degree sexual offense is not an aggravated offense. The court remanded for a risk assessment and a new SBM hearing.

The trial court erred by finding that sex offense in a parental role (G.S. 14-27.7(a)) is an aggravated offense.

Citing State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011), the court held that because rape of a child under the age of 13 necessarily involves the use of force or threat of serious violence, the offense is an aggravated offense requiring lifetime SBM. In dicta, it concluded: “Under the test created by this Court . . . there are no offenses that ‘fit within’ the second definition of ‘aggravated offense,’ i.e., an offense that includes ‘engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.’”

State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011)

Applying an elemental analysis, the court determined that first-degree rape under G.S. 14-27.2(a)(1) fits within the definition of an aggravated offense in G.S. 14-208.6(1a). An aggravated offense includes engaging in a sexual act involving vaginal, anal, or oral penetration with a victim (1) of any age through the use of force or the threat of serious violence or (2) who is less than 12 years old. Rape under G.S. 14-27.2(a)(1) cannot satisfy the second prong because it occurs when a person engages in vaginal intercourse with a child under the age of 13, not 12. However, the offense does fall within the first prong of the aggravated offense definition. Such a rape requires proof that a defendant engaged in vaginal intercourse with the victim. This contrasts with G.S. 14-27.4(a)(1), which allows a defendant to be convicted of first-degree sexual offense on the basis of cunnilingus, an act that does not require penetration. Also, vaginal intercourse with a person under the age of 13 necessarily involves the use of force or the threat of serious violence.

First-degree sexual offense under G.S. 14-27.4(a)(1) and indecent liberties with a minor under G.S. 14-202.1 are not aggravated offenses as defined by G.S. 14-208.6(1a) requiring lifetime satellite-based monitoring.

The trial court erred by finding that first-degree sexual offense with a child under 13 is an aggravated offense for purposes of ordering lifetime satellite-based monitoring (SBM). As the State conceded, when making the relevant determination, the trial court only is to consider the elements of the offense of conviction, not the underlying facts giving rise to the conviction. In a footnote, the court noted that although the record contains several judgments imposing SBM with respect to indecent liberties, courts have held that indecent liberties is not an aggravated offense. The court declined to rule on this issue because it was not raised on appeal.

Following State v. Phillips, 203 N.C. App. 326 (2010), the court held that first-degree sexual offense under G.S. 14-27.4(a)(1) (child victim under 13) is not an aggravated offense for purposes of SBM. To be an aggravated offense, the child must be less than 12 years old; “a child under the age of 13 is not necessarily also a child less than 12 years old.” The court reversed and remanded for consideration of whether the defendant is a sexually violent predator, a recidivist, or whether his conviction involved the physical, mental, or sexual abuse of a minor, and based on the risk assessment performed by the Department of Correction, defendant requires the highest possible level of supervision and monitoring.

Following McCravey, the court granted the State’s petition for writ of certiorari and remanded for entry of an order requiring lifetime SBM enrollment on the basis of the defendant’s second-degree rape conviction, which involved a mentally disabled victim. A concurring opinion agreed that the second-degree rape conviction was an aggravated offense, but not as a direct result of McCravey.

State v. King, 204 N.C. App. 198 (May. 18, 2010)

Following Singleton and holding that indecent liberties is not an aggravated offense.

Sexual battery is not an aggravated offense for the purposes of SBM.

Applying the “elements test,” second-degree rape committed by force and against the victim’s will is an aggravated offense triggering lifetime SBM.

Following Davison and holding that when considering whether a pleaded-to offense is an aggravated one for purposes of SBM, the trial court may look only to the elements of the offense, and not at the factual basis for the plea. In this case, the defendant pleaded guilty to felonious child abuse by the commission of a sexual act in violation of G.S. 14-318.4(a2) and taking indecent liberties with a child. Following Singleton and holding that notwithstanding the factual basis for the plea, taking indecent liberties was not an aggravated offense. The court went on to hold that considering the elements only, the trial court erred when it determined that the defendant’s conviction for felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an aggravated offense.

Following Davison and holding that the pleaded-to offense of indecent liberties was not an aggravated offense under the elements test.

Remanding for failure to properly conduct the SBM determination, as outlined in the court’s opinion. The court also held that when determining whether an offense is an aggravated offense for purposes of SBM, the trial court may look only at the elements of the conviction offense and may not consider the facts supporting the conviction.

The court declined to issue a writ of certiorari to consider the defendant’s argument that the trial court erred in finding that he was a recidivist and thus qualified for lifetime SBM. The defendant failed to timely appeal on this ground. The court declined to issue the writ because the defendant had not shown that his argument has merit or that error was probably committed below. Here, the defendant argued that his convictions for indecent liberties against his daughter could not count as a “prior conviction” because they occurred on the same day as his guilty plea to the additional counts of indecent liberties against different victims. The court noted that the defendant was not simultaneously convicted of the offenses that rendered him a recidivist. After he was convicted and sentenced for offenses against his daughter, he plead guilty to separate offenses that occurred more than a decade earlier. At the time he pled guilty to those offenses, he had already been convicted and sentenced for the offenses against his daughter. Thus, he had a prior conviction for a reportable offense at the time the trial court sentenced him on the new convictions. The court concluded: “That his prior conviction occurred earlier the same day rather than the day before, or many years before, is irrelevant . . . .” 

The trial court’s conclusion that the defendant was a recidivist was not supported by competent evidence and therefore could not support the conclusion that the defendant must submit to lifetime sex offender registration and SBM. The trial court’s order determining that the defendant was a recidivist was never reduced to writing and made part of the record. Although there was evidence from which the trial court could have possibly determined that the defendant was a recidivist, it failed to make the relevant findings, either orally or in writing. The defendant’s stipulation to his prior record level worksheet cannot constitute a legal conclusion that a particular out-of-state conviction is “substantially similar” to a particular North Carolina offense.

There was sufficient evidence that the defendant was a recidivist for purposes of lifetime SBM. The prior record worksheet and defense counsel’s stipulation to the prior convictions support a finding that the defendant had been convicted of indecent liberties in 2005, even though it appears that the State did not introduce the judgment or record of conviction from that case, or a copy of defendant’s criminal history.

Affirming the trial court’s order requiring the defendant to enroll in SBM for life as a recidivist based on convictions for indecent liberties with a minor in 1989 and 2006. The defendant argued that his 1989 conviction for indecent liberties should not qualify him as a recidivist because that conviction was not itself reportable (convictions for indecent liberties are reportable for those convicted or released from a penal institution on or after January 1, 1996). The court held that a prior conviction need only be “described” in the statute defining reportable offenses. Thus, a prior conviction can qualify a person as a recidivist no matter how far back in time it occurred. The court also concluded that the defendant had not properly preserved the claim that SBM violates ex post facto.

Citing State v. Cowan, 207 N.C. App. 192, 204 (Sept. 21, 2010), the court rejected the defendant’s argument that the trial court erred by determining that indecent liberties involved the physical, mental, or sexual abuse of a minor.

State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010)

Assuming without deciding that an elements-based approach should be used when determining eligibility for SBM under G.S. 14-208.40(a)(2), the trial court did not err by requiring the defendant, who had pleaded guilty to solicitation of indecent liberties, to enroll in SBM on the grounds that the offense involved the physical, mental, or sexual abuse of a minor. Interpreting the word “involve,” the court concluded that eligibility for SBM under G.S. 14-208.40(a)(2) includes both completed acts and acts that create a substantial risk that such abuse will occur. The court determined that an attempt to take an indecent liberty has “within or as part of itself” the physical, mental, or sexual abuse of a minor. It concluded that although solicitation of an indecent liberty need not involve the commission of the completed crime, an effort to “counsel, entice, or induce” another to commit that crime also creates a substantial risk that the “physical, mental, or sexual abuse of a minor” will occur, so that such a solicitation has the sexual abuse of a minor “as a “necessary accompaniment.”

Statutory rape constitutes an offense involving the physical, mental, or sexual abuse of a minor. Once the trial judge determines that the defendant has been convicted of such an offense, the trial judge should order the DOC to perform a risk assessment. The trial court then must decide, based on the risk assessment and any other evidence presented, whether defendant requires “the highest possible level of supervision and monitoring.” If the trial court determines that the defendant requires such supervision and monitoring, then the court must order the offender to enroll in SBM for a period of time specified by the court.

In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.

(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.

(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.

(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.

As conceded by the State, the trial court erred by ordering the defendant to enroll in SBM. The Static-99 risk assessment of “Moderate-Low” without additional findings by the trial court was insufficient to support the trial court’s conclusion that the defendant requires the highest level of supervision and monitoring.

The trial court erred by imposing satellite-based monitoring for a period of thirty years due to a violation of G.S. 14-208.40A. Here, the Static-99 revealed a risk assessment of four points, which translated into a “Moderate-High” risk category. Pursuant to existing law, the “Moderate-High” risk category is insufficient to support a finding that the highest possible level of supervision and monitoring was required.

State v. Smith, 240 N.C. App. 73 (Mar. 17, 2015)

In this indecent liberties case, the trial court did not err by considering evidence regarding the age of the alleged victims, the temporal proximity of the events, and the defendant’s increasing sexual aggressiveness; making findings of fact based on this evidence; and imposing SBM. Although the trial court could not rely on charges that had been dismissed, the other evidence supported the trial court’s findings, was not part of the STATIC-99 evaluation, and could be considered by the trial court.

The trial court erred by requiring the defendant to enroll in lifetime SBM. Two of the trial court’s additional findings supporting its order that the defendant—who tested at moderate-low risk on the Static 99—enroll in lifetime SBM were not supported by the evidence. Also, the additional finding that there was a short period of time between the end of probation for the defendant’s 1994 nonsexual offense and committing the sexual offense at issue does not support the conclusion that he requires the highest possible level of supervision and monitoring. Although the 1994 offense was originally charged as a sexual offense, it was pleaded down to a non-sexual offense. The trial court may only consider the offense of conviction for purposes of the SBM determination.

(1) The trial court erred by concluding that the defendant required the highest level of supervision and monitoring and ordering him to enroll in SBM for ten years when the STATIC-99 risk assessment classified him as a low risk and the trial court’s additional findings were not supported by the evidence. The trial court made additional findings that the victim suffered significant emotional trauma, that the defendant took advantage of a position of trust, and that the defendant had a prior record for a sex offense; it found that these factors “create some concern for the court on the likelihood of recidivism.” The finding regarding trauma was based solely on unsworn statements by the victim’s mother, which were insufficient to support this finding. The defendant’s prior record and likelihood of recidivism was already accounted for in the STATIC-99 and thus did not constitute additional evidence outside of the STATIC-99. However, because the State had presented evidence which could support a determination of a higher risk level, the court remanded for a new SBM hearing. (2) The trial court erred by concluding that indecent liberties was an offense against a minor as defined by G.S. 14-208.6(1m). However, that offense may constitute a sexually violent offense, and can thus support a SBM order.

The trial court erred by ordering lifetime SBM. The trial court concluded that the defendant was not a sexually violent predator or a recidivist and that although the offenses involved the physical, mental, or sexual abuse of a minor, he did not require the highest possible level of supervision and monitoring. The trial court’s finding that the defendant did not require the highest possible level of supervision and monitoring did not support its order requiring lifetime SBM.

The trial court erred by requiring the defendant to enroll in satellite-based monitoring (SBM) for ten years after finding that he required the highest level of supervision and monitoring. The DOC risk assessment classified the defendant as a low risk and only two of the trial court’s four additional findings of fact were supported by competent evidence. One finding of fact involved the defendant’s Alford plea and lack of remorse. Remanding, the court instructed that the trial court may consider whether the defendant’s actions showed lack of remorse but indicated that no authority suggests that the fact of an Alford plea itself shows lack of remorse.  

Although one of its factual findings was erroneous, the trial court did not err by requiring the defendant to enroll in SBM for five years after finding that he required the highest possible level of supervision.The trial court based its conclusion on a DOC risk assessment of “moderate-low” and on three additional findings: (1) the victims were especially young, neither was able to advocate for herself, and one was possibly too young to speak; therefore the risk to similarly situated individuals is substantial; (2) the defendant has committed multiple acts of domestic violence; and (3) the defendant obtained no sex offender treatment. Distinguishing the determination at issue from the “aggravated offense” determination and the determination as to whether an offense involves the physical, mental, or sexual abuse of a minor, the court rejected the defendant’s argument that the first additional finding was erroneous because it relied on the underlying facts of the conviction. The court concluded that this finding was supported by competent evidence, specifically, the defendant’s stipulation to the prosecutor’s summary of facts provided at the defendant’s Alford plea. The court concluded that additional finding two was not supported by competent evidence. The only relevant evidence was the State’s representation that the defendant pled guilty to an assault charge involving the victim’s mother and a list of priors on his Prior Record Level worksheet, containing the following entry: “AWDWIKI G/L AWDW AND CT”. The court concluded that additional finding three was supported by the defendant’s admission that he had not completed the treatment. Finally, the court determined that the risk assessment and additional findings one and three supported the trial court’s order.

State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010)

The trial court erred in requiring lifetime SBM under G.S. 14-208.40(a)(2); that provision subjects a person to SBM for a term of years.

Following Kilby and Causby, the court held that the trial court erroneously determined that the defendant required the highest level of supervision and monitoring. The Static 99 concluded that the defendant posed a low risk of re-offending and no other evidence supported the trial court’s determination.

State v. King, 204 N.C. App. 198 (May. 18, 2010)

Remanding for a determination of whether the defendant required the highest level of supervision and monitoring. Although the DOC’s risk assessment indicated that the defendant was a moderate risk, there was evidence that he had violated six conditions of probation, including failure to be at home for two home visits, failure to pay his monetary obligation, failure to obtain approval before moving, failure to report his new address and update the sex offender registry, failure to enroll in and attend sex offender treatment, and failure to inform his supervising officer of his whereabouts, leading to the conclusion that he had absconded supervision. Noting that in Morrow (discussed above), the probation revocation hearing and the SBM hearing were held on the same day and before the same judge and in this case they were held at different times, the court found that distinction irrelevant. It stated: “The trial court can consider the number and frequency of defendant’s probation violations as well as the nature of the conditions violated in making its determination. In particular, defendant’s violations of failing to report his residence address and to update the sex offender registry as well as his failure to enroll in and attend sex offender treatment could support a finding that defendant poses a higher level of risk and is thus in need of SBM.”

Once the trial judge determines that the defendant has been convicted of such an offense, the trial judge should order the DOC to perform a risk assessment. The trial court then must decide, based on the risk assessment and any other evidence presented, whether defendant requires “the highest possible level of supervision and monitoring.” If the trial court determines that the defendant requires such supervision and monitoring, then the court must order the offender to enroll in SBM for a period of time specified by the court.

State v. Morrow, 200 N.C. App. 123 (Oct. 6, 2009) aff’d, 364 N.C. 424 (Oct 8 2010)

It was error for the trial court to order that the defendant enroll in SBM for a period of 7-10 years; G.S. 14-208.40B(c) requires the trial court to set a definite period of time for SBM enrollment.

State v. Morrow, 200 N.C. App. 123 (Oct. 6, 2009) aff’d, 364 N.C. 424 (Oct 8 2010)

In determining whether the defendant requires the highest possible level of supervision and monitoring, the trial court may consider any evidence relevant to the defendant’s risk and is not limited to the DOC’s risk assessment. Because evidence supporting a finding of high risk was presented in a probation revocation hearing held the same day (the defendant admitted that he failed to attend several sexual abuse treatment program sessions), the court remanded for an evidentiary hearing as to the defendant’s risk.

Following Kilby (discussed immediately above), on similar facts.

The trial judge erred in concluding that the defendant required the highest possible level of supervision and monitoring when the Department of Correction risk assessment found that the defendant posed only a moderate risk and trial judge made no findings of fact that would support its conclusion beyond those stated on form AOC-CR-616.

In this Iredell County case, the defendant was convicted of multiple counts of indecent liberties with a minor. He was ordered to enroll in satellite-based monitoring (“SBM”) for life as a recidivist offender. The North Carolina Supreme Court later decided State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019) (holding SBM unconstitutional as applied to recidivist offenders). A “review hearing” of defendant’s SBM enrollment was conducted following that decision. No motion or other pleading was filed by the State for the hearing. The defendant appeared pro se. The State presented a Static-99 risk assessment and recounted the defendant’s criminal record. The trial court ordered that the defendant remain enrolled in the SBM program for life, and the defendant appealed. 

No basis for SBM existed in this case other than the defendant’s status as a recidivist. Grady III squarely held that one’s status as a recidivist alone is insufficient to justify SBM. The State argued that the defendant had been provided an opportunity to seek removal from the program at the review hearing, and that the trial court’s order was supported by the evidence. According to the State, the review process rendered the defendant ineligible for relief under Grady III. The court disagreed:

The State did not invoke the jurisdiction of the trial court for the [review] hearing during which Defendant was ostensibly provided with the post hoc process that the State claims disqualifies him from relief under Grady III. The State cannot avoid Grady III . . . by devising a procedure that itself violates Defendant’s rights. Billings Slip op. at 9.

 While G.S. 14-208.40A permits the trial court to consider SBM at sentencing, and G.S. 14-208.40B permits a “bring-back” hearing where there has been no prior determination of SBM eligibility, neither of these statutes applied to the defendant’s situation. Further, case law is clear that the State may not seek reconsideration of SBM once the issue has been decided. See State v. Clayton, 206 N.C. App. 301 (2010) (imposition of SBM at probation violation was improper when issue had already been decided against the State at SBM hearing). Without a new reportable conviction, there was no jurisdictional basis for the purported SBM review hearing. The lack of a written motion or pleading also acted to deprive the trial court of jurisdiction.  The SBM order was therefore vacated without prejudice, allowing the State to properly seek a SBM order if it desires.

Judge Tyson wrote separately to concur in result only. He noted that any discussion in the majority opinion beyond its holding that the trial court lacked jurisdiction was dicta.

The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction to hold the SBM hearing in Craven County. The requirement that the SBM hearing be held in the county in which the defendant resides relates to venue and the defendant’s failure to raise the issue before the trial court waives his ability to raise it for the first time on appeal.

(1) The district court lacked subject matter jurisdiction to order the defendant to enroll in satellite-based monitoring (SBM) after a district court conviction for misdemeanor attempted sexual battery. G.S. 14-208.40B(b) requires that SBM hearings be held in superior court for the county in which the offender resides. (2) The superior court lacked subject matter jurisdiction to order the defendant to enroll in SBM after a de novo hearing on the district court’s order than the defendant enroll. Hearings on SBM eligibility are civil proceedings. Pursuant to G.S. 7A-27(c), an appeal from a final judgment in a civil action in district court lies in the court of appeals, not in the superior court.

Because the trial court previously held a hearing pursuant to G.S. 14-208.40B (SBM determination after sentencing) and determined that the defendant was not required to enroll in SBM, the trial court lacked jurisdiction to later hold a second SBM hearing on the same reportable conviction. In this case, the defendant was summoned for the second SBM hearing after a probation violation. The trial court required the defendant to enroll in SBM based on the fact that his probation violation was sexual in nature. The court reasoned that a probation violation is not a crime and cannot constitute a new reportable conviction.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 463 (2018), the court held that although the defendant failed to preserve his argument that the trial court erred by imposing lifetime SBM without determining whether the monitoring was a reasonable search under the Fourth Amendment, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved constitutional issue. The Court of Appeals concluded that the defendant properly preserved the issue of whether his SBM was reasonable under the Fourth Amendment and that alternatively, if the defendant had failed to preserve the issue, it would invoke Rule 2 to relax Rule 10’s issue preservation requirement and review the claim on the merits. The Court of Appeals then vacated the SBM order without prejudice to the State’s ability to file a subsequent SBM application. The Supreme Court held that because the defendant failed to object to the SBM order on Fourth Amendment constitutional grounds with the requisite specificity, he waived the ability to raise that issue on appeal. However, the Court of Appeals did not abuse its discretion by invoking Appellate Rule 2 to review the unpreserved argument. In this respect the court found it significant that the State conceded that the trial court committed error relating to a substantial right.

The court per curiam affirmed a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 833 (2018), in which the court declined the defendant’s request to grant his petition for writ of certiorari to review the trial court’s order requiring him to enroll in lifetime SBM. The defendant argued that the trial court erred by ordering him to submit to SBM without first making a reasonableness determination as required by Grady. The defendant conceded that he failed to make his constitutional argument at trial and that his appeal from the SBM order was untimely.

In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.

(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.

(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.

(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.

The defendant failed to preserve for appellate review his claim that the trial court erred by requiring him to enroll in satellite-based monitoring (SBM). The defendant asserted that the State failed to meet its burden of proving that imposing SBM is reasonable under the fourth amendment. Because the defendant raised no fourth amendment objection at the SBM hearing and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review. In its discretion, the court declined to grant review under Rule 2, reasoning that the law was well-established at the time of the hearing and the State was not on notice of the need to address Grady issues due to the defendant’s failure to raise the constitutional issue.

Because SBM hearings are civil proceedings, the defendant’s oral notice of appeal from an order requiring him to enroll in lifetime SBM was insufficient to give the court jurisdiction to hear his appeal. The court declined to grant the defendant’s request for writ of certiorari to review the issue, or to suspend the Rules of Appellate Procedure to reach the merits.

A defendant’s appeal from a trial court’s order requiring enrollment in SBM for life is a civil matter. Thus, oral notice of appeal pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on the court of appeals. Instead, a defendant must give notice of appeal pursuant to N.C.R. App. P. 3(a) as is proper “in a civil action or special proceeding[.]” For related cases, compare State v. Clayton, 206 N.C. App. 300 (Aug. 3, 2010) (following Brooks and treating the defendant’s brief as a petition for writ of certiorari and granted the petition to address the merits of his appeal); State v. Oxendine, 206 N.C. App. 205 (Aug. 3, 2010) (same); State v. Cowan, 207 N.C. App. 192 (Sept. 21, 2010) (same); State v. May, 207 N.C. App. 260 (Sept. 21, 2010) (same); State v. Williams, 207 N.C. App. 499 (Oct. 19, 2010) (same), with State v. Inman, 206 N.C. App. 324 (Aug. 3, 2010) (over a dissent, the court followed Brooks and held that because there was no written notice of appeal, it lacked jurisdiction to consider the defendant’s appeal from a trial court order requiring SBM enrollment; the court declined to treat the defendant’s appeal as a petition for writ of certiorari; the dissenting opinion would have treated the defendant’s appeal as a writ of certiorari and affirmed the trial court’s order.

Because a SBM order is a final judgment from the superior court, the Court of Appeals has jurisdiction to consider appeals from SBM monitoring determinations under G.S. 14-208.40B pursuant to G.S. 7A-27.

The Court upheld the federal government’s power to civilly commit a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released from prison. For a more detailed discussion of this case, click here.

The defendant was convicted of first-degree rape, kidnapping, and sex offense in Alamance County and sentenced to a minimum 420 months. The trial court ordered lifetime satellite-based monitoring (“SBM”), but no Grady hearing was conducted. The defendant sought certiorari review after failing to give proper notice of appeal. The court granted the petition. The defendant further sought to suspend the rules of appellate procedure to allow review of the unpreserved claim. Noting other cases where Rule 2 of the Rules of Appellate Procedure had been invoked to review claims on similar facts, the Court of Appeals allowed review.

Despite ample guidance from case law regarding the requirements for imposition of SBM, the State did not offer any evidence and the trial court did not conduct any hearing on the issue. The order was therefore vacated. Although the State is prohibited from trying again following an unsuccessful attempt to prove the appropriateness of SBM, here, it had no such opportunity given the lack of a hearing on the issue. The order was therefore vacated without prejudice, allowing the State to seek an SBM order if it desires.

Judge Tyson dissented and would not have allowed review of the unpreserved claim, calling the defendant’s appellate argument “frivolous.” Barnes Slip op. at 17 (Tyson, J., dissenting).

In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings.  Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict.  In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a).  The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse.  As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).

As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue.  The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18).  Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.

The defendant pleaded guilty to raping and murdering his aunt, and received a sentence of 240-348 months for the rape followed by a consecutive sentence of life with parole for the murder. On appeal, the defendant argued that: (i) a consecutive sentence of life with parole was not permitted under G.S. 15A-1340.19A, et seq. (the “Miller-fix statutes”); (ii) his sentence was unconstitutional since it amounted to a de facto sentence of life without parole; and (iii) the trial court erred in ordering lifetime satellite-based monitoring (SBM) without holding a hearing. 

The majority first held that consecutive sentences are permissible under the statutes, and trial courts have discretion to decide whether to order consecutive or concurrent sentences, so the defendant’s first argument was overruled. Next, the court held that the consecutive sentence imposed in this case was not unconstitutional. The majority acknowledged that an identical sentence was held unconstitutional in State v. Kelliher, __ N.C. App. __, 849 S.E.2d 333 (2020), temp. stay allowed, __ N.C. __, 848 S.E.2d 493 (2020), but found that it was not binding precedent because the state Supreme Court stayed the decision and granted discretionary review. Assuming that a de facto life sentence without parole would be unconstitutional, that argument did not apply to this defendant since he will be eligible for parole at age 60, after serving 45 years. However, the trial court did err at the sentencing hearing by failing to conduct a hearing before ordering the defendant to enroll in lifetime SBM, so that order was vacated and remanded with instructions to conduct a hearing.

Chief Judge McGee concurred in part and dissented in part. Judge McGee agreed that the statutes themselves do not prohibit consecutive sentences and also agreed that the order for lifetime SBM should be vacated, but would have held that the consecutive sentence of life with parole constituted a de facto sentence of life without parole, and was therefore unconstitutional as held in Kelliher.

In this case involving rape and other sex crimes where the defendant was ordered to enroll in lifetime SBM, the court of appeals vacated the order imposing SBM because of uncertainty surrounding the evidentiary basis of the trial court’s decision.  With regard to the issue of efficacy of SBM, at the SBM hearing a DPS employee testified regarding a 2015 California study of GPS monitoring of sex offenders and that study was introduced into evidence.  However, the trial court’s order imposing SBM referred to a 2012 California study of GPS monitoring of sex offenders.  The court of appeals vacated the order and remanded for clarification as to which California study the trial court relied upon.

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.

Immediately after sentencing, the state asked to proceed with an evidentiary hearing on subjecting defendant to satellite-based monitoring (SBM) after his release. Rather than conduct a hearing, the trial court took notice of the facts presented at trial, defendant’s prior conviction, and the nature of the underlying offense, and ordered defendant placed on lifetime SBM. On appeal, defendant argued it was error to enter that order without conduct a hearing; the state conceded it was error, and the Court of Appeals agreed. To support an SBM order, the state must prove at a hearing that the search imposed by monitoring is reasonable as applied to the defendant, under the totality of the circumstances, weighing the defendant’s privacy rights against the state’s legitimate interests. The trial court’s order was reversed and the matter was remanded to conduct the hearing.

Because no evidence was presented prior to or to support the trial court’s lifetime SBM order, the court vacated that order and remanded for proper analysis and determination under G.S. 14-208.40A.

The court reversed the trial court’s lifetime registration and SBM orders. When a trial court finds a person was convicted of a “reportable conviction,” it must order that person to maintain sex offender registration for a period of at least 30 years. If a trial court also finds that the person has been classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense, it must order lifetime registration. Before a trial court may impose SBM, it must make factual findings determining that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.2A or G.S. 14-27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor. Because the victim was not a minor, only the first three categories are relevant here. However in its orders, the trial court found that the defendant had not been convicted of an aggravated offense, was not a recidivist, nor had he been classified as a sexually violent predator. It nevertheless ordered the defendant to enroll in lifetime registration and lifetime SBM. The court reversed the registration and SBM orders and remanded those issues for resentencing. The court noted that if the State pursues SBM on remand, it must satisfy its burden of presenting evidence from which the trial court can fulfill its judicial duty to make findings concerning the reasonableness of SBM under the fourth amendment pursuant to the Grady decision.

Ineffective assistance of counsel claims cannot be asserted in SBM appeals; such claims can only be asserted in criminal matters.

The trial court erred by requiring the defendant to enroll in SBM. After finding that the defendant did not fall into any of the categories requiring SBM under G.S. 14-208.40, the trial court nonetheless ordered SBM enrollment for 30 years, on grounds that his probation was revoked and he failed to complete sex offender treatment. The court remanded for reconsideration.

(1) The court rejected the defendant’s argument that since no civil summons was issued, the trial court had no jurisdiction to impose SBM; the trial court had jurisdiction under G.S. 14-208.40A to order SBM. (2) The trial judge erroneously concluded that the defendant had a reportable conviction on grounds that indecent liberties is an offense against a minor. However, since that offense is a sexually violent offense, no error occurred.

The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring. The defendant was convicted of attempted first-degree rape under G.S. 14-27.2, and indecent liberties under G.S. 14-202.1, both sexually violent offenses and thus reportable convictions. At the sentencing hearing, the court found that the offenses “did involve the physical, mental, or sexual abuse of a minor . . . but no risk assessment is required from the [DOC] because lifetime satellite-based monitoring is required . . . .” The trial court ordered that lifetime monitoring based upon a finding that defendant had been convicted of “rape of a child, G.S. 14-27.2A, or sexual offense with a child, G.S. 14-27.4A, or an attempt, solicitation, or conspiracy to commit such offense . . . as a principal.” However, defendant was convicted under G.S. 14-27.2 and 14-202.1, not 14-27.2A or 14-27.4A. Moreover, the trial court did not find that defendant was a sexually violent predator or that defendant was a recidivist, and it found that the offense was not an aggravated offense. Therefore, the trial court erred in ordering lifetime satellite-based monitoring and in failing to order that a risk assessment be performed pursuant to G.S. 14-208.40A(d) prior to ordering enrollment in lifetime monitoring.

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